Urbina, Ricardo - Interview master file / Witness to Guantanamo / Duke Digital Repository

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Ready?

0:05

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Yeah, we're rolling.

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Okay, good morning.

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(Ricardo clears throat)

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Good morning.

0:07

Interviewer

We are very grateful to you

0:08

for participating in the

0:09

Witness to Guantanamo project.

0:11

We invite you to speak of your experiences

0:13

and involvement with,

0:17

and the work you did at the court

0:19

and Guantanamo Bay, Cuba.

0:21

We are hoping to provide you with an opportunity

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to tell your story in your own words,

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and we're creating an archive of stories

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so that people in America and around the world

0:31

will have a better opportunity to understand

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all that happened in the past dozen years.

0:37

And hopefully, your experience will help us understand that.

0:40

Future generations must know what happened at Guantanamo,

0:44

and by telling you a story,

0:47

you're contributing to history.

0:49

We appreciate your willingness to speak with us today.

0:51

And if you'd like to take a break,

0:54

please let us know.

0:56

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Aye.

Interviewer

And if there's anything you said

0:57

you would like to remove,

0:59

we can remove it too,

1:00

if you let us know in time.

1:01

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Very well.

1:02

Interviewer

And we'd like to begin with

1:03

a little background.

1:04

If you wouldn't mind telling us your name, and occupation,

1:05

and also, a little bit about your upbringing,

1:08

and how old you are?

1:11

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Okay.

1:13

My name is Ricardo Urbina.

1:14

I was born in 1946, January,

1:17

and I was born of a Honduran father

1:20

and a Puerto Rican mother.

1:23

So they came here.

1:24

They met, grow up in New York City, Manhattan,

1:25

and then in Queens.

1:29

When I was 17,

1:30

I started college in Washington DC,

1:31

and after four years of college,

1:36

I decided to go to law school,

1:39

and I went to Georgetown Law.

1:41

I was a part federal...

1:44

I was a public defender for a number of years.

1:45

That was an agency that represented individuals

1:48

who were accused of crimes but couldn't afford counsel.

1:51

And after a few years of that,

1:55

I went into private practice with a friend.

1:58

And about two years into that experience,

2:01

I was recruited by Howard University to teach.

2:04

I joined the faculty there.

2:07

And after about seven,

2:10

a little more than seven and a half years,

2:12

I was nominated for a position

2:15

on the Superior Court of the District of Columbia.

2:18

Even though it's not a federal court,

2:22

the president makes appointments,

2:24

and I was President Reagan's first appointment.

2:26

After 13 years on the bench there,

2:29

I was invited to join the federal bench

2:31

by President Clinton in 1993.

2:36

And I spent 18 years on the federal bench,

2:40

and retired a couple years ago.

2:43

Interviewer

Can you just tell us

2:47

where you went to college too?

2:48

'Cause you just mentioned-

2:49

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Yes.

I went to Georgetown University and then Georgetown Law.

2:50

Interviewer

And is there anything...

2:55

Is there anything about the past, up till 9/11,

2:58

that you think maybe you just wanna give us

3:01

that informs how you became a judge?

3:04

Did you know the presidents,

3:07

or did you have connections?

3:10

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No, I didn't have any connections to speak of.

3:11

interestingly enough,

3:14

people who are interested in becoming judges

3:15

have to have a quality which is totally opposite

3:18

to what they ultimately have to do to become a judge.

3:21

You have to be apolitical, and you should be at least.

3:26

But of course, in order to get the best advantage,

3:29

in order to be considered,

3:33

you have to speak to the right people

3:34

and meet the right people.

3:36

I was very fortunate, in that the Superior,

3:38

in the District of Columbia,

3:40

there had never been a Latino judge

3:41

appointed to any bench at any time.

3:44

And so the Latino community,

3:46

the African-American community, the Women's Bar,

3:48

all kind of consolidated their efforts

3:51

to bring to the president's attention that gap.

3:55

And so I was appointed.

3:58

Interviewer

And how did they know you?

4:00

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Well, I was well known as a trial attorney,

4:02

but also, I taught.

4:06

I had some visibility there.

4:08

And I continued to practice in the courts.

4:09

Even while I was teaching,

4:12

I had a private practice that took me to the courts.

4:13

I would try, perhaps, one murder case

4:16

or one complex civil case a year.

4:18

And so I had good visibility,

4:21

and, I'd like to believe, a good reputation

4:22

among the judges in the Superior Court.

4:26

But the people,

4:28

they were people up on the Hill,

4:29

Senator Javits being one of them,

4:30

who became interested in me,

4:32

and so that prompted some of the political momentum.

4:34

Interviewer

Did it appeal to you to become a judge,

4:39

as opposed to a professor or a lawyer?

4:41

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Well, to tell you the truth,

4:43

I had not thought about it at all.

4:45

One day, the dean of the law school

4:46

called me into his office,

4:49

and I thought I was in trouble, but I wasn't,

4:51

and he said,

4:55

"Have you ever thought about being on the bench?"

4:56

And I told him no.

4:58

You know, I was 33 or 34 at the time.

5:00

And he said, "Here, well fill this out

5:03

and give it back to me tomorrow", and I did.

5:04

And he looked at it, and he said,

5:06

"Well, you know, you are young, but let's see."

5:08

So next thing you know,

5:11

the Judicial Nominations Commission

5:13

invited me in for an interview,

5:14

and things began to move in the right direction.

5:17

It didn't hurt that the dean was the chair

5:19

of the Judicial Nominations Commission, so.

5:21

(both laughing)

5:23

Interviewer

So he had his eye on you?

5:24

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Yes, he did.

5:25

Interviewer

And did you look forward

5:26

to becoming a federal judge?

5:28

Is that-

5:30

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Yes.

I did.

5:32

For a couple of reasons.

5:34

Of course, being a federal judges is a wonderful position,

5:35

in that you get an opportunity to actually influence

5:39

the way your country conducts itself vis-à-vis the law,

5:42

and I felt that there were areas that it would help

5:47

to have someone with my background and my experience.

5:52

So that was a motivation.

5:55

I was also motivated by the fact that the...

5:58

While I was on the Superior Court,

6:04

it was a people's court.

6:06

Lots of cases.

6:08

I sat in all the divisions of domestic relations,

6:09

and juvenile, and civil, and criminal.

6:13

For two years, I sat on a calendar.

6:16

I presided over cases that consisted only of rape,

6:18

first degree murder, and child molestation cases.

6:21

And so after 13 years of that,

6:25

you get a little tired,

6:27

and you want, not so much of the subject matter,

6:28

but you get a little psychically tired,

6:31

and I decided that I would like an opportunity

6:34

to be able to actually think about things

6:37

before deciding them.

6:39

So federal bench had that appeal as well

6:42

Interviewer

So you started...

6:47

I'm sorry, what year did you begin on the federal bench?

6:48

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1990, 1994.

6:51

Interviewer

And so when 9/11 happened,

6:56

did that change immediately

6:58

how you saw your role on the federal bench?

7:01

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No.

7:04

Coincidentally, I was presiding over

7:06

a naturalization ceremony on the day of 9/11.

7:09

It was an audience of about 2 or 300 people,

7:13

most of them just being,

7:17

just becoming citizens that day.

7:20

It's a wonderful thing that judges get to enjoy.

7:23

Nobody walks away unhappy,

7:26

unlike other cases.

7:27

I was told just before I went on the bench,

7:30

that these airplanes had flown

7:31

into the buildings.

7:37

But I did not share that information with the audience.

7:40

I went through the 45 minute ceremony,

7:42

and spoke, and so forth.

7:46

And then at the end of the ceremony,

7:48

after everyone had been sworn in,

7:50

I told them that it was a great responsibility

7:52

to be an American,

7:56

and that it was a great honor to be an American,

7:57

and it was also very dangerous to be an American,

8:00

and then I told them what I meant.

8:03

And literally, everyone that I looked at was crying.

8:05

They were that emotionally moved.

8:10

I left that ceremony,

8:15

and went up to to my courtroom

8:16

where I had eight representatives

8:19

of the Japanese government waiting for me,

8:22

sitting in the jury box,

8:24

who were waiting to ask questions about

8:25

visiting the court, and so forth.

8:28

But no, I knew that things were going to change,

8:29

but I did not have a vision.

8:33

I didn't have a hint of how much they were gonna change.

8:35

Interviewer

So you didn't see

8:39

the planes actually flying?

8:40

You were just

8:41

informed of that-

8:42

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Yeah.

I saw the films later on, but no, I hadn't.

8:43

I didn't actually appreciate it,

8:45

how incredibly horrific the scene was.

8:47

Interviewer

And did you have any cases

8:51

dealing with 9/11 issues at all before?

8:54

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No.

8:58

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Nothing?

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No, none of those cases came to my court,

8:59

or even to my court, the general court,

9:03

the US District Court.

9:06

Although, we were put on alert

9:08

that there was gonna be

9:09

a very active campaign to identify and prosecute terrorists.

9:11

None of those cases came to me,

9:17

or, I believe, none came to my court.

9:19

Interviewer

How does it happen

9:22

that a case will go to

9:23

one district judge in DC and not another?

9:24

Is that assigned by the-

9:27

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No.

Well, yes and no.

9:30

No, all the judges are on a wheel,

9:31

and as cases come in,

9:34

your position on the wheel is pretty much serendipitous

9:37

one way or the other,

9:42

and then the case goes to you.

9:43

In this situation we're about to talk about, however,

9:47

when these cases came in, there had never,

9:51

there was no precedent for how to deal with these cases.

9:53

We, meaning my court, got all of the Guantanamo cases,

9:56

all of them,

9:59

because of the statute that dictated that

10:00

those cases would come to us,

10:02

as you know as a law professor.

10:03

So the Chief Judge, Tom Hogan,

10:06

did an amazingly good job of kind of organizing

10:10

and orchestrating how we would proceed,

10:14

how to get things moving

10:16

so that we were all on the same page, so to speak.

10:18

And at one point, when the issue came up

10:22

of how to deal with a grouping of cases,

10:26

he would assign them.

10:29

And he did assign me the cases regarding the Uyghurs.

10:30

Interviewer

Well, let's back up then.

10:34

So until 2004, the rest of the decision,

10:36

I assume your court didn't expect to get any habeas cases,

10:40

or did you?

10:44

Were you-

10:44

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Well, I can't speak for the individual judges.

10:45

Some of the judges, I think might've felt

10:48

that the cases were gonna come our way.

10:50

But other judges understood,

10:52

after what Russell,

10:58

and Hamdan, later on, two years later,

10:59

that there was a real effort

11:02

on the part of the federal government,

11:04

the executive and the legislative,

11:05

to keep these cases out of the court system,

11:07

and to create a venue

11:09

where these cases could be expeditiously addressed.

11:12

And so it was unclear

11:15

as to exactly what we were gonna get.

11:18

But when they did all come our way,

11:20

I think we were mainly caught by surprise.

11:22

Male

Peter, can we pause for just 30 seconds?

11:25

Peter

Sure.

11:26

Interviewer

So until 2008, until the Boumedine

11:28

the court didn't expect to see habeas cases,

11:32

or where they begin to think of it after Hamdan?

11:35

Essentially, to just know what the court

11:38

is thinking up till the Boumedine.

11:40

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Well, I think the judges were watching the action,

11:42

so to speak,

11:47

how the legislative branch was

11:48

really toiling with the issue

11:51

of how to deal with this population of detainees.

11:53

Of course, there was the efforts

11:59

on the part of Congress to create tribunals,

12:01

and military courts,

12:06

some of which had potential,

12:08

but as you know from the decisions,

12:11

they were largely rejected by the courts later on,

12:13

because they did not have the due process

12:17

pursuant to the Fifth Amendment, or otherwise,

12:20

that would have afforded them

12:23

a fair opportunity to be heard.

12:24

So I think we were all watching.

12:27

Maybe there was some chatter about,

12:29

well, who was gonna win this tug of war?

12:30

Was it gonna be the legislative branch?

12:32

And then the executive branch also was very obviously

12:36

interested in keeping these cases out of the courts,

12:40

and there was a good reason for that.

12:43

I feel that if the government

12:47

had put together courts of judges with life appointments

12:50

who were apolitical,

12:55

and became experts in terrorism, and things of that sort,

12:58

that things might've moved a little more smoothly.

13:02

But as I'll discuss later on, if you ask,

13:06

there were myriad problems

13:10

with how to deal with these cases.

13:12

Interviewer

So when was the first

13:16

habeas case brought to the court?

13:19

Do you recall that?

13:21

Or do you-

13:22

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I think it was...

I think soon after

13:25

Boumedine.

13:26

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Boumedine?

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Yes.

13:27

Interviewer

And it wasn't sent to you, obviously?

13:29

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Well, I had case...

13:32

No, I had cases other than the Uyghur cases.

13:33

It was a decision on the Chief Judge's part

13:37

to group these, the Uyghur cases,

13:40

because the issues looked to be very similar,

13:42

and there was some internal controversy

13:45

within the government about

13:47

whether they were terrorist or not,

13:49

enemy combatants or not.

13:51

So the Chief Judge assigned me those cases,

13:53

and I had other detainee cases as well.

13:55

Interviewer

So what was...

13:58

Do you remember...

13:59

Do you recall your first detainee case?

14:00

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I don't remember the name.

14:02

I don't.

14:04

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Do you remember the subject,

and just the habeas?

14:06

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Yes.

It was a habeas much like many of the other cases

14:07

that attacked the evidence

14:11

that that was being interpreted

14:13

as proof of the individual's combatant status.

14:16

And right from the first case,

14:21

and I think other judges had a similar experience,

14:25

we could see...

14:27

Well, let me put it this way.

14:30

We wanted to expedite these cases,

14:30

'cause these people were incarcerated,

14:32

and they either needed to be tried and punished

14:34

or they needed to be released,

14:36

and that's the way judges think.

14:37

Get to it, and get through it, and finish it.

14:39

But right away,

14:43

we noticed that there were going to be inherent delays.

14:44

The lawyers for the detainees were doing

14:51

what they were supposed to do.

14:54

They were asking for discovery.

14:55

But the process had to be altered,

14:57

because much of the evidence...

14:59

Well, first of all,

15:03

all the lawyers had to be cleared ,

15:04

had to have security clearances,

15:06

and high security clearances

15:08

if they wanted to be exposed to the evidence.

15:10

And then the process was very truncated,

15:13

in that the detainees' lawyers would be entitled,

15:17

eventually, to get just about all the evidence they wanted.

15:21

Often, not all the evidence,

15:26

but frequently, much of the evidence they wanted.

15:27

But then the question was,

15:30

the evidence that is turned over,

15:33

is this evidence that can be relied upon?

15:36

There were problems with interpreters that didn't...

15:38

Well, there are so many dialects

15:44

that didn't really satisfy the norm

15:46

as to what was being said.

15:48

There were problems with conflicts

15:51

within the federal government itself,

15:53

in that Homeland Security, the CIA, Department of Justice,

15:54

they all had different interpretations of what should be

16:01

top secret or not,

16:06

what should be shared or not,

16:07

or what could be shared.

16:08

Everything was in the kind of miasma of national security.

16:10

And so judges were kind of in the lurch as to what to do,

16:14

because, perhaps, the judge would get

16:18

the Department of Justice to agree to turn something over,

16:21

but then it would be obstructed by another agency,

16:23

who said, no, no, no, that can't be turned,

16:25

because it's a matter of national securities.

16:26

We're working on something there.

16:28

So I think the judges got very frustrated,

16:30

at least some of us,

16:34

with the kind of inherent delay of trying to get

16:36

the case to a status that we're used to,

16:40

which is turnover, so the evidence,

16:42

so everybody knows what it is,

16:44

and then let's proceed with an adjudication,

16:45

and it was hard to do that.

16:48

Interviewer

Did the judges talk among themselves

16:50

of the problems that you just described?

16:53

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Yes, we talked a bit.

16:55

We never consulted with each other about outcomes

16:58

in one another's cases,

17:02

'cause judges don't do that usually.

17:03

But yes, the procedural problems, the logistics.

17:05

We shared strategies about how to get the evidence

17:09

one way or the other,

17:13

how to expedite.

17:14

And in the meantime,

17:15

because these detainees were,

17:16

many of them were detained for significant periods of time,

17:21

and many of them were very unhappy with the conditions,

17:25

collateral issues began to arise,

17:31

hunger strikes began to arise,

17:32

claims of brutality began to arise.

17:35

And these kind of became offshoots of the main issue,

17:39

whether or not there was sufficient evidence to prove,

17:42

to hold 'em,

17:46

and to demonstrate that it was an enemy combatant,

17:47

and so forth.

17:49

Some of them went on hunger strikes.

17:52

Then there were issues, should they be forced fed or not?

17:53

Or if they were mentally,

17:57

if they appear to have some mental issues,

17:59

should they be forced to take medication?

18:01

And so it became a real hornets nest of problems.

18:04

Interviewer

Would you say,

18:10

it was very different from anything

18:11

you had experienced before?

18:12

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Oh, yes.

18:15

Very much so.

18:16

I mean, we had handled cases that required

18:18

top secret clearance,

18:23

spies, and things of that sort,

18:26

but even those cases were very straightforward.

18:28

The government claimed X.

18:31

The defense said,

18:33

they're not gonna be able to prove it.

18:34

And in the criminal arena,

18:36

the rules are pretty, pretty clear.

18:38

You turn it over,

18:40

and then let's go to trial,

18:41

let's pick a jury, and here we go.

18:43

But this was very different, very very different,

18:45

'cause we were not charged

18:47

or tasked with the ultimate adjudication.

18:50

We were entertaining petitions for writ of habeas corpus,

18:52

and that was kind of a different animal.

18:55

Indeed, as you know,

18:59

petitions for writ of habeas corpus are civil, not criminal.

19:02

So trying to infuse the criminal rules in a,

19:05

quote/unquote, "civil proceeding" itself became cumbersome.

19:09

Interviewer

And did Chief Hogan ever try to

19:14

have a meeting with all the judges,

19:17

and tried to work out an approach

19:18

that might work for all the judges?

19:21

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Yes, he did.

19:23

He did a brilliant job of meeting with all the judges,

19:24

explaining how he, as the Chief Judge,

19:27

was gonna issue a general order

19:30

setting forth general guidelines for discovery,

19:32

and so forth, so that we'd all,

19:35

the parties and the judges would all be able to

19:38

work with a set of rules.

19:41

And we were all very grateful for that.

19:43

Interviewer

Did it work?

19:46

-

Well, it did,

19:47

to the extent that it could work, it did work.

19:48

The judges knew what to do,

19:52

but the rules kept on shifting,

19:54

as I'm sure we'll touch upon later.

19:57

What type of evidence was going to be turned over,

20:04

how to deal with assertions

20:10

that evidence could not be disclosed

20:12

because of national security,

20:14

how to counterbalance that

20:16

with the needs of the detainee,

20:18

to know what the details of the charge and the proof is.

20:21

So things remained, in my view, somewhat influx,

20:25

but thanks to this general order

20:30

that Chief Judge Hogan created,

20:33

we all had a general direction to go in.

20:36

But as I said, the rules began to change

20:39

(interposing voices)

20:41

when the Court of Appeals-

Well, for awhile there,

20:43

I thought the judges knew pretty well.

20:47

All of us were quite experienced

20:49

how to filter through the evidence and pick out facts.

20:52

But the Court of Appeals, at one point,

20:57

strongly disagreed with our methodology,

21:01

strongly disagreed to the point where,

21:04

in instances that I can recall personally,

21:07

my findings of facts were not, were set aside,

21:10

and a whole other interpretation of what happened

21:14

and how it should be viewed

21:19

was super imposed by the appellate court.

21:22

Interviewer

Is that normal?

21:26

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No, that's very unnormal.

21:27

And I'm not being critical of the Court of Appeals.

21:31

They worked hard, and they did a good job.

21:34

As you know, some of their decisions were

21:37

decisions that trial judges didn't like,

21:39

the kind of reversals and things.

21:44

But other decisions, as you know,

21:45

Parhat and others,

21:46

were really quite on the money.

21:48

They worked very hard to deal with these issues.

21:49

But no, you know, as we all know in the law,

21:54

when there's no jury,

21:57

the judge is the fact-finder,

21:59

and the judge may be wrong on the law,

22:00

and the Court of Appeals can say so.

22:02

But when the judge makes facts,

22:04

identifies facts, finds facts,

22:06

then, usually, that's the way it is.

22:09

And then the next step is to see whether or not the law,

22:12

what was appropriately applied to those facts.

22:16

But in some instances that I recall,

22:18

that's not the way it happened.

22:19

Interviewer

Why do you think?

22:21

-

I haven't quite ever figured that out exactly.

22:23

I mean, I could give you the easy answer, and say,

22:26

that in some instances, certain panels of appellate judges

22:28

were predisposed to find that habeas hadn't,

22:32

the habeas standard had not been met,

22:41

that these people would...

22:43

I could say that,

22:44

but it would be unfair speculation on my part.

22:46

I mean, it seemed that way that, for a while,

22:50

the six cases that were appealed, that went up,

22:53

all granting the writ, were all reversed.

22:57

Different judges.

23:01

So there is some grounds to speculate there,

23:03

but I can't really tell you why it happened the way it did.

23:07

Interviewer

Well, did you,

23:12

the judges talk among themselves

23:14

and to wonder why the Court of Appeals was reversing?

23:16

Were there other people who had thoughts about

23:19

why that was done-

23:21

-

Well, the judges

did talk among themselves,

23:23

and they didn't,

23:24

in my recollection, they did it in a very intelligent way.

23:26

I mean, for example,

23:29

whether or not the standard for proof

23:34

should be proof beyond a reasonable doubt,

23:37

or by preponderance of the evidence.

23:41

This was a discussion that kind of arose

23:43

out of how the Court of Appeals was looking at things,

23:46

and whether certain types of evidence would be admissible,

23:49

whether certain presumptions would operate

23:54

to aid the government or the aid the fact-finder,

23:58

certain presumptions would generate out of,

24:03

if certain things were proved,

24:04

would a presumption arise out of that?

24:06

These were things that, of course,

24:08

were not in the books,

24:10

were not in any of the cases prior to these events.

24:11

And we all had to feel around,

24:18

and try to talk it out and see.

24:20

Not that we were collaborating

24:22

on how we should reach our outcomes,

24:24

but we were trying to just talk among ourselves

24:26

about the law, and about the law of evidence,

24:29

and about confidentiality,

24:32

and about undisclosed material evidence,

24:34

and the influences that torture,

24:38

allegations of torture might have on the credibility,

24:40

and how much we could consider that,

24:43

and what had to be proved with regard

24:45

to whether or not torture was an element

24:46

of the extraction of the evidence.

24:48

So you can see, it was complex.

24:50

Interviewer

Would you say it was messy?

24:52

-

Yeah, it was messy,

24:54

but our job was to try to find order out of chaos,

24:56

and I think the judges did a excellent job.

25:03

The judges with whom I worked on the US District Court

25:07

were very dedicated, very serious.

25:10

And even if we had,

25:14

some of us had kinda differing ideologies,

25:15

everybody was on the same page

25:18

about giving the detainees a fair process to look to,

25:20

and giving the world, for that matter,

25:27

a glimpse of how fair,

25:28

this is my personal opinion,

25:31

how fair the American system of justice was and could be.

25:33

Interviewer

Do you feel that

25:40

the US government pushed back,

25:41

and that's part of the interference,

25:44

that's part of what created so many problems?

25:45

-

There was a lot of pushback.

25:48

The Bush administration,

25:53

and even as we know in Kimba,

25:54

the Obama administration viewed this

25:57

as a very different set of circumstances.

26:01

No precedent having been established

26:04

in the history of our country,

26:08

where we were pursuing information

26:10

with respect to a broad range terrorism,

26:13

and issues of national security

26:17

that had killed thousands of Americans in one fell swoop.

26:20

So there was that element of, I think, anger.

26:24

I don't know if it was anger among the legislative

26:28

or among the executives so much,

26:31

but there was anger in the community.

26:33

And I think the representatives of the people,

26:35

the House and the Senate,

26:40

were sensitive to that,

26:41

and wanted to create a structure

26:42

that would render results.

26:44

Fine these people and punish them.

26:48

And, of course, the political branches are entitled,

26:51

and maybe responsible,

26:55

to listen and to react to the,

26:56

but not the courts.

26:58

Maybe it was Socrates that said that,

27:01

"The law is reasoning without emotion",

27:04

and that's what we were trying to do,

27:08

to look at these things and find a path.

27:10

Interviewer

I think that's really well said.

27:14

So for the audience and some in general public,

27:16

can you explain a little bit about the separation of powers,

27:20

and the role of the courts,

27:22

and why the courts were not able to, I guess,

27:23

effectuate their role well

27:27

given, what you called, chaos, or the complexities?

27:29

-

Well, it's inherent

27:33

and expected that there's going to be

27:35

tension between the branches.

27:39

Two of them are political branches,

27:42

and the third,

27:43

the judicial branch is not political,

27:44

in the sense that it's,

27:47

they're not voted in, so to speak.

27:48

And so the legislative branch, as we know,

27:51

is the branch that is responsible to write the laws.

27:55

The Senate and the House,

28:00

they write, and they vote, and they create the laws,

28:01

the black letter law that best serves the country,

28:04

and best reflects the will of the country.

28:08

The executive branches, as we know,

28:11

is the branch that enforces the law.

28:13

It sees to it, that whatever's been written,

28:15

whatever's been mandated by the, is done.

28:17

And then the judicial branch is the one

28:21

that sits back and waits,

28:23

and it's reactive.

28:24

It's not proactive, it's reactive.

28:26

And sees what the legislative

28:28

and/or the executive branch have done,

28:30

and then waits to see,

28:33

examines it to see if

28:35

it is consistent with the Constitution,

28:38

and with the governing laws, federal laws.

28:41

So as to the federal government, the federal law.

28:46

The judicial branch has a responsibility to be detached.

28:51

And although, of course,

28:55

the judicial branch is also a servant of the people,

29:00

it serves the people in a very different way.

29:02

We're not there to make the people happy.

29:04

We're not there to respond to a constituency.

29:08

And I'm not being critical.

29:10

I'm just saying, it's different.

29:11

We are supposed to sit back and look at things,

29:14

and look at what's been written by the legislative,

29:16

and passed by the legislative branch,

29:19

and look at how the executive is acting on those laws,

29:21

and then decide how those laws interface,

29:24

and if those laws interface fairly with the Constitution

29:29

and the people that are, the law being scrutinized, so.

29:34

Interviewer

And so we'll move on

29:39

to your particular cases.

29:41

But I just...

29:42

I want people to kind of understand,

29:43

that there's a general frustration among the court members,

29:44

because you weren't able to do the job that you understood

29:48

given all that was going on outside and that.

29:52

Could you say, politics was trying to

29:56

insinuate its way into the court decisions?

29:58

-

Well, yes,

30:02

and I'm not speaking about the DC Circuit.

30:06

I'm talking about the (mumbles).

30:08

It's, of course, understandable

30:10

that the political branches have

30:13

many interests to meet and satisfy,

30:15

national, as well as international interests,

30:20

and not all the members of Congress,

30:24

and perhaps, not all the members of the executive branch,

30:31

have the same perspective

30:35

about how the law should be applied

30:36

in a particular scenario.

30:39

So for the courts to be tasked

30:42

with something this important,

30:49

with anything, but something this important,

30:50

the courts are gonna revert

30:53

to the rules that it understands,

30:55

to the procedures that it understand,

30:56

and the approach that it knows renders justice,

30:58

the yin and the yang,

31:04

the up and the down, the black and the white,

31:05

so that there is a dynamic that creates

31:07

in its final product a just result.

31:10

So yes, there was some frustration

31:14

on the part of the courts,

31:18

because it felt, to some extent, obstructed.

31:21

There would be a hearing, and the judge,

31:28

I'll use myself as an example,

31:31

'cause I didn't sit in on any other judge's proceedings,

31:32

but I think that they were probably similar.

31:34

The judge would say, well, let's look at the issue.

31:38

There's a question here as to whether this gentleman...

31:41

Of course, the gentleman was never present,

31:44

'cause he couldn't be present.

31:45

This accused, this detainee is an enemy combatant,

31:47

and therefore, subject to the types of sanctions

31:51

that the legislature, and the executive,

31:56

and the law deems appropriate.

32:01

But see, we are not supposed to be looking at the outcome.

32:02

We're supposed to be looking at the process.

32:07

And so the judge says,

32:09

all right, well, the way to do this

32:11

is to give the detainee's lawyers

32:12

all the information you are relying on,

32:15

so that the detainee's lawyer can then argue,

32:18

and there'll be this combustion

32:20

between what you claim and what they claim,

32:22

and then I'll sit back, and I'll look at it,

32:24

and I'll decide whether there's been

32:26

a preponderance of evidence one way or the other,

32:28

and there'll be an outcome, and then let's move on.

32:30

But it just couldn't move that way,

32:33

because of the issues I mentioned earlier.

32:35

Interviewer

And would you,

32:38

or would you or the other judges

32:41

ever get frustrated at the government, and say,

32:43

you need to do your job, and you're not doing your job?

32:44

-

Yes, I think all of the judges, at some point or another,

32:47

based on what I heard judges say,

32:51

would demand, would require that something be done,

32:54

whether it was providing evidence,

32:59

or whether it was acting on a promise to transfer,

33:03

or in some instances, acting on a directive to release.

33:07

Interviewer

And why do you think

33:14

the government would stonewall?

33:15

Did the judges talk about that?

33:17

-

Well, I don't recall any specific conversation

33:21

precisely on that point,

33:24

but when you're dealing with a system

33:27

that operates on advocacy,

33:32

as you know, Professor,

33:34

there is an arena where people wanna win,

33:37

and advocacy is often accompanied by

33:40

this very powerful desire to prevail.

33:45

Now, in this sense, no one's immune from that,

33:48

not the judge, not the defense, not the government,

33:52

but it's there.

33:56

And sometimes, I think, in these situations,

33:57

the government stubbornly adhere to a position

34:02

because it did not want to yield to the other side

34:06

something that would suggest that it was

34:09

failing to do its job in the maximum efficient way.

34:13

Interviewer

I think people can

34:19

read between the lines on that, so.

34:20

(both chuckling)

34:22

Okay, well, let's talk about

34:23

the first habeas case that you...

34:24

Well, the habeas cases you got were all frustrating,

34:29

and then, eventually, you got the Uyghur cases.

34:31

Do you want to talk to that?

34:35

Are there any other habeas cases

34:36

before the Uyghur cases worth addressing?

34:37

-

Now, the other cases,

34:41

before the Uyghur cases came my way,

34:42

were pretty much as I described.

34:45

There were instances where it was clear.

34:48

There were some instances where it was clear

34:51

that the evidence strongly incriminated

34:53

the detainee as an enemy combatant,

34:57

the way the evidence was well marshaled, well represented,

35:01

and it was a coherent picture of

35:09

how this person moved from place to place,

35:11

and participated in training of Taliban

35:14

or other enemy combatants.

35:19

But then there were those cases that

35:21

the evidence was much more vague,

35:24

either because it was not substantively persuasive,

35:26

or because there were credibility issues that undermined it.

35:32

Interviewer

Did you feel...

35:36

Were you worried that

35:37

maybe if you say this person did,

35:40

there was not sufficient evidence to hold them,

35:43

were you worried that you might be releasing a terrorist?

35:45

-

Well, there's always that concern, you know, in any case.

35:48

What's the public opinion gonna be?

35:52

But, I mean, if a judge goes through that,

35:54

has that feeling, that reaction,

35:57

it's only very briefly.

35:59

I mean, I think you have that reaction for a moment,

36:01

and then you say, but that's not my job.

36:04

My job, I do my piece of the the task,

36:06

and then other things have to happen.

36:11

If the country or the coalition needs protection

36:13

then it has to do something itself.

36:18

The judge's role is not to say, oh, I wonder if,

36:20

although the evidence is deficient,

36:23

and he has to be released,

36:24

I wonder if he's a bad guy?

36:25

I don't think it could work that way.

36:27

Interviewer

So when you did find in some case

36:30

that there wasn't sufficient evidence to hold the person,

36:33

you said the prisoner

36:37

should be released?

36:38

-

Yes.

Interviewer

And then, do you recall,

36:40

before the Uyghur cases,

36:42

if those cases were appealed

36:43

to the Court of Appeals?

36:44

-

Some were appealed,

and some were not.

36:46

I seem to remember, that in a couple of instances,

36:49

there was an appeal and the cases were reversed,

36:54

because the circuit felt that there were,

36:57

that the analysis and the application of the presumptions

37:03

did not support my conclusion.

37:07

I don't have any specific recollections,

37:11

but I seem to remember there was a case or two, at least,

37:12

where that happened.

37:15

And then it would be sent back to me,

37:16

and then I would have to address the issues.

37:18

If the Court of Appeals specified what needed to be done,

37:22

that was always easier, okay?

37:26

And this is the gap,

37:27

let's fill it in one way or the other.

37:29

But sometimes, the the Court of Appeals was not as specific,

37:31

and therefore, I or the trial judge had to discern

37:35

and divide what the issue was,

37:43

and where the deficiencies were,

37:46

and call upon counsel to illuminate, and proceed from there.

37:47

Interviewer

Did you ever rule to release someone

37:52

and then the person wasn't released,

37:54

not because the Court of Appeals overturned it,

37:56

but just, the government just didn't release him anyway?

37:57

Did that ever occur?

38:00

-

No, I don't think that occurred,

38:01

not to my recollection,

38:03

but there were times when the release was very delayed,

38:04

and, of course, I would be informed by

38:09

counsel for the detainee that,

38:11

you know, you ordered this a month or two ago,

38:12

but it hasn't happened yet,

38:14

then I'd call the people in,

38:16

and the government would present its explanation

38:17

as to why it hadn't happened,

38:20

and then I would try to

38:21

escalate their interest in having it done.

38:26

And I don't think the government ever resisted beyond that,

38:30

until the Uyghurs.

38:36

-

Uyghur, mm-hmm.

Well, sure.

38:38

Let's go into the Uyghurs.

38:39

We always can go back to it,

38:40

but I wanted the background.

38:41

I thought it was important for the viewers.

38:42

But let's go into the Uyghur case,

38:43

the first Uyghur case that you got,

38:46

and maybe we can go from there,

38:47

-

All right.

38:49

-

and you can just

give us the chronology?

38:50

-

Although I don't know the reason why

38:52

the chief judge decided to send all the Uyghur cases to me.

38:54

This being an unusual process,

38:58

where the chief judge is actually directing cases to people.

38:59

But I wound up with the 17 Uyghurs

39:04

I did not know what a Uyghur was.

39:08

I had not heard the term before,

39:11

but the lawyers on both sides were very good

39:13

in bringing me up to speed,

39:17

giving me background.

39:20

And what I discerned from what was presented,

39:21

looking at it from the detainee's point of view,

39:25

that this was a group of people,

39:29

mostly from Turkestan,

39:32

who had religious convictions,

39:34

primarily of a Muslim faith,

39:37

and that they were being oppressed,

39:40

and discriminated against,

39:45

and by the Chinese government,

39:47

which desired them to be fully integrated or gone.

39:51

And the Chinese government had gone so far

39:56

as to label them as terrorists.

39:58

Because this allegation of terrorism

40:02

became active as violence,

40:04

and actual oppression,

40:07

and brought danger onto the the situation

40:09

that these Uyghurs were experiencing,

40:12

they fled, and they fled to various places.

40:13

First, to Afghanistan,

40:18

where for a while, prior to 9-1-1,

40:21

they were doing just fine, if I recall correctly.

40:26

They were living,

40:29

and, of course, there was a Muslim population,

40:30

and they were there peaceful.

40:32

But, of course, there were those in these villages,

40:33

in these places, that they had housed themselves in

40:37

that were not non-violent people,

40:41

who didn't care about the Chinese government,

40:45

and had designs to fight the struggle,

40:48

to bring the struggle to the west, western alliance.

40:53

And so when 9-1-1 occurred, and things escalated,

40:57

many of these Kurds began to move towards Afghanistan.

41:03

They were, if I recall correctly,

41:07

stopped at the border, and then arrested.

41:09

Many of them were sold to the American government

41:14

for large sums of money

41:17

by persons in positions of authority.

41:19

And this was a great incentive in that place at that time

41:26

to herd the Uyghurs in with the

41:32

rest of the combatant population,

41:34

and that's how they wound up in Guantanamo.

41:37

Interviewer

And so what was their claim

41:40

that you heard when you first got the first case?

41:43

(interposing voices)

41:46

-

Well, the claim was

that they were not enemy combatants,

41:48

and that they were being improperly,

41:50

and ultimately, as decided by the courts,

41:52

illegally detained.

41:56

and this whole issue of

41:58

whether or not they were enemy combatants was central.

41:59

The fact that they had been kind of dragnetted

42:06

into incarceration and detention,

42:09

was the fact that they wanted to distinguish and to explain,

42:15

because they did not want to be

42:19

adjudicated enemy combatants,

42:23

because they were in a wrong place at the wrong time.

42:26

And so my impression was,

42:29

that I needed to look very closely

42:32

at the circumstances of their arrest, their detention,

42:34

and to look closely at the allegations

42:39

to see if there was any truth

42:42

to the fact that they were not enemy combatants,

42:44

and that they were being improperly and illegally detained.

42:46

And that's how the case began to evolve at the outset.

42:51

Interviewer

And what was the

42:55

government's position at that point?

42:56

-

Well, you know, this is an interesting question,

42:58

because, perhaps, as far back as 2003,

43:00

I think the government already had a strong sense

43:05

that these were, these Uyghurs people,

43:08

these Uyghur people were not enemy combatants,

43:10

but they were dragging their feet.

43:14

And as the scenario unfolded,

43:15

it became clear that there were interests...

43:21

Well, first of all,

43:26

that the government was in a very difficult position.

43:27

These individuals could not be sent back to China,

43:32

because, as terrorists,

43:35

they probably would have been executed.

43:37

As time evolved,

43:45

and these cases came down one after the other,

43:46

Rasul, and Hamdan, and Boumediene,

43:49

and then, ultimately, Parhat,

43:52

as these cases evolved,

43:54

and the courts became more and more convinced

43:56

that it had the power and authority to act

43:59

in a general sense on habeas corpus,

44:04

and in my situation, to, even more,

44:06

my situation being even stronger,

44:12

in that, as time went by,

44:13

the government admitted

44:16

that these were not enemy combatants.

44:20

The one that they try to bring up, Parhat, in,

44:23

I think it was 2008.

44:26

When that case was treated by the Court of Appeals,

44:29

the Court of Appeals said,

44:32

no, the evidence that you presented is not persuasive.

44:33

You either have to release him.

44:37

You have to convene a CSRT,

44:39

a tribunal, to adjudicate him

44:46

within a fashion consistent with this opinion,

44:49

or you have to transfer them, him.

44:54

Well, soon thereafter, the government said,

44:59

no, well, we don't claim any further

45:00

that he's an enemy combatant.

45:02

And they conceded that the status of all the other Uyghurs

45:05

was the same as his,

45:08

so that these people were being held,

45:09

they didn't say illegally,

45:12

but were being held,

45:14

but not as enemy combatants,

45:15

and that the effort was gonna be made to transfer them,

45:17

to move them out of Guantanamo to another venue.

45:21

Interviewer

And what was the issue then before you?

45:26

-

The issue before me was,

45:29

what needed to be done?

45:35

Because if...

45:37

As in the hearing, the ultimate hearing,

45:38

that resulted in my decision, my pronouncement,

45:40

I asked, "Now, let's get this clear".

45:44

"These people pose no danger to the United States."

45:50

"Is that correct?"

45:55

"Yes."

45:56

"They pose no danger to the coalition members?"

45:57

"Yes."

46:00

"They are not, in your view, terrorists?"

46:01

"Yes."

46:04

"And they are not enemy combatants?"

46:05

"Yes."

46:07

"But you are holding them?"

46:08

"Yes."

46:09

"And when are you going to release them?"

46:10

"We don't know."

46:12

"So does that mean they're gonna be held indefinitely?"

46:14

And they said, "Yes, but we have the power to do that,

46:17

because these are..."

46:21

This was the explanation that the government presented,

46:22

or that I'm paraphrasing,

46:25

and the lawyer was very eloquent and articulate,

46:26

but I'm paraphrasing.

46:28

"Yes, we have the power to do this."

46:30

"We have the responsibility to do this

46:32

because we're kind of trying to clean up things,

46:33

trying to organize things,

46:37

and this effort with the Uyghurs is part of that,

46:38

and it's very complex."

46:42

Well, the complexity of the situation, the root of it,

46:44

was the resistance the Chinese government was having

46:48

to these detainees being released.

46:53

And I found out, that the upshot of that was,

46:59

that the Chinese government was expressing its displeasure

47:03

to any country that the United States approached

47:07

with a view towards moving them to that particular country.

47:12

So they were there indefinitely.

47:16

They were stuck without a place to go.

47:19

They were moved, removed from their culture,

47:22

removed from their families,

47:24

removed from their place of upbringing,

47:25

largely restrained from practicing their religion

47:31

in a way that was consistent with their beliefs,

47:37

and there was no agenda for releasing them.

47:41

The Parhat decision,

47:49

which came down in 2006, I think, 2008,

47:50

it had very explicit language in it.

47:58

The DC Circuit was very explicit.

48:00

And in one paragraph, it stated that,

48:02

referring to the right of Mr. Parhat

48:07

to have a hearing before a federal judge, it says,

48:09

"And in that instance,

48:11

the court would have the power to release,

48:16

would have the power,

48:20

and the authority to release".

48:21

Well, Boumediene had already spoken to that,

48:23

had already identified habeas corpus

48:28

as the means through which these people could be released,

48:32

not only in the Uyghurs, but I mean, generally.

48:35

The way I learned the law is,

48:40

that if you have a solution,

48:42

if you have a mandate,

48:50

there has to be a remedy.

48:51

So if there's a directive that the Constitution

48:52

and the law of habeas corpus directs that

48:55

the body be released, be delivered into freedom,

48:58

but there is no way to do that,

49:03

because you're dealing with someone who refuses

49:06

or is unable to meet that responsibility.

49:09

Then the court, as Parhat had said,

49:13

has the authority to order that person released.

49:15

Well, it was clear that the order to have them released

49:18

was obstructed by these factors,

49:22

the resistance that China had,

49:25

and the fear that many of these,

49:27

I don't wanna call it fear,

49:31

the reluctance that many of these countries had

49:33

to buck China.

49:36

So I said, "Okay, well, then they should be brought here".

49:37

And-

49:42

-

Here, meaning?

-

My courtroom, United States of America.

49:45

And when they were brought here,

49:48

then I would want

49:49

the Department of Homeland Security, Department of Justice,

49:52

the US Attorney's Office, the CIA,

49:55

anyone who felt that they needed a voice

49:57

to help structure

50:01

the conditions under which

50:06

they would be released into the community

50:07

would be invited to come.

50:10

Now, in the meantime,

50:11

the courtroom was absolutely...

50:12

They were standing.

50:14

I had never seen anything like this.

50:15

There was standing room only.

50:16

The people were flowing out the door into the corridor,

50:17

and it's a big courtroom.

50:20

Many Uyghur people.

50:22

And most interestingly,

50:25

many people there from various communities,

50:27

not only the Uyghur community,

50:30

of which it was a substantial community in Virginia,

50:31

but the faith community,

50:34

various components of

50:37

the faith community, and-

50:41

-

What is a faith community?

-

By that, I mean, the Lutheran church, the Catholic church,

50:43

all of these-

50:48

-

Christian?

-

Christian and non-Christian, I believe,

50:49

church representatives, faith representatives,

50:54

who were there to provide assistance.

50:56

We can get him a job.

50:58

We can put them up.

50:59

We have places where they can live.

51:01

We have a Uyghur community

51:02

into which they can be integrated with, and so forth.

51:04

And all of that was very encouraging,

51:07

and it seemed, to me, sensible.

51:09

That they were not terrorist.

51:10

There was no danger to America.

51:11

They were gonna be held indefinitely

51:13

if something didn't happen.

51:15

So here we are.

51:16

We have resources and support in abundance.

51:18

And one or two of the Uyghur people came forward

51:22

with representatives of the faith.

51:25

Whether they actually spoke or not,

51:29

but they presented themselves

51:31

in the front of the courtroom near the well of the court.

51:32

And my recollection is,

51:34

that I took note of that,

51:39

and I thought that,

51:40

when I said that, "They should be brought here",

51:41

I was looking at the possibility,

51:44

the very real, tangible, palpable resources

51:46

that these people presented to these non-combatant,

51:50

non-dangerous, non-terrorist people,

51:53

but the government said, "You can't do that".

51:56

And I said, "Well, I just did it".

51:59

And, of course, then they took an appeal.

52:02

And the panel that reviewed my refusal to stay the case,

52:03

they wanted me to issue a stay pending,

52:09

and I said, "No".

52:12

They went to the Court of Appeals.

52:13

The Court of Appeals issued the stay.

52:14

And the two of the three

52:16

judges who presided over

52:21

that part of the case,

52:25

they said that, the appeal,

52:28

that the stay should be imposed.

52:31

A third one did not.

52:32

The third judge dissented.

52:34

And the stay was given,

52:36

and the case went up on appeal.

52:42

Interviewer

Well, before we go into the procedural part,

52:44

I wanna go back to what happened.

52:46

How many days/weeks did this case go on?

52:48

And from the beginning,

52:51

were you thinking, that given what you just described,

52:53

you were gonna release these Uyghurs into the US?

52:56

How did it all evolve-

52:59

-

Well, it evolved

when the case came in,

53:00

maybe a month or two before the ruling I've just referenced,

53:04

and I read all the papers.

53:10

I held status hearings,

53:12

at which time the lawyers were invited in

53:14

to tell me what was going on,

53:19

and to give me information about the status of matters,

53:20

and what was being done, what was anticipated,

53:24

what was contemplated, and so forth.

53:26

The lawyers for the Uyghurs were very, very motivated,

53:28

as were the lawyers for the government,

53:35

but highly motivated,

53:37

and made very strong arguments, sensible arguments,

53:38

about the unfairness of the situation.

53:41

But I didn't...

53:45

I did not make up my mind to release them,

53:46

because I knew that there needed to be more exploration

53:48

in order to make sure

53:53

that the American public was comfortable, if possible,

53:54

and that all parties had an opportunity to deal with it.

53:58

Maybe there was something I was overlooking

54:04

that I needed to pay attention to?

54:06

So I did not make...

54:07

Even in my own mind,

54:09

I did not make that snap decision.

54:11

But as things evolved,

54:13

and the government produced nothing

54:14

but the suggestion of more delay and indefinite detention,

54:17

I decided that something had to take place.

54:22

Male

We need to pause for just a sec

54:25

for a battery change.

54:26

Interviewer

Oh, okay, okay.

54:28

Do you want some water

54:29

or tea maybe?

54:30

-

No, I'm good.

Interviewer

Okay.

54:32

So before you made that decision,

54:34

did you have a chance,

54:38

or did you feel comfortable talking to

54:39

some of the other judges as to where this might go

54:41

and whether you should go in that direction?

54:44

-

No.

54:47

I did not ever discuss, except on procedural points.

54:52

If there was a procedural point,

54:56

and I wanted some guidance or some feedback, I might.

54:57

But in terms of a substantive outcome,

55:01

I never discussed it with other judges,

55:04

'cause I felt uncomfortable doing that,

55:06

and I think I would have made other judges uncomfortable

55:09

if they believed that I was asking them

55:11

to help me make a decision.

55:13

Interviewer

And were you planning,

55:15

the way this decision was structured,

55:17

to release all 17 men into the US?

55:19

It was only a few of them before you.

55:22

Do you recall?

55:24

-

Yes.

It was my intention to have all of them brought here.

55:25

And then, if there was a reason

55:29

that one or more could not be paroled

55:33

or released into the community,

55:35

I was sure that Homeland Security,

55:37

or the Department of Justice,

55:39

or the US Attorney's Office would be able

55:41

to bring that to the floor,

55:43

and then I could address it,

55:45

and revise my decision,

55:47

or craft it in a way, again,

55:49

that would put the public at ease.

55:51

Interviewer

And what influence

55:55

or what effect did it have on you to see

55:58

the courtroom so overcrowded,

56:00

and that you mentioned, the faith community was in there?

56:02

What did that mean to you?

56:06

-

Well, I had no idea until I walked into the courtroom

56:07

that this case had attracted so much attention.

56:11

After all, I mean, how many people knew about the Uyghurs?

56:15

But I began to walk towards

56:19

from my chambers to the courtroom,

56:23

my courtroom deputy came out, and she said,

56:27

"Judge, there's a lot of people in the courtroom".

56:29

And I said, "Really?"

56:32

She says, "Yes, they're standing all over the place,

56:33

and they're going out into the hall".

56:35

"Is there anything you want me to do?"

56:37

And I said, Well, tell the marshal that..."

56:38

I didn't know who these people were,

56:40

and what their motives or intentions were.

56:42

So I said, "Tell the marshal to standby

56:45

in case things get unruly".

56:47

And she said, "Okay".

56:50

So she went in and told the marshal, and I walked in,

56:51

but as soon as I walked in,

56:53

I could see from their appearance

56:55

that these were people from the various communities,

56:57

including Uyghurs, who were dressed in a way,

57:00

or had emblems, either by their dress or otherwise,

57:03

that they were part of that Uyghur community.

57:09

I could see that why they were here.

57:10

So yes, it did influence me,

57:14

to the extent that I knew that there was an organized

57:18

and thoughtful group of people

57:23

prepared to act or speak in a way

57:26

that would inform all of us.

57:31

Interviewer

And at the point that you came to this,

57:36

had you already then made your decision?

57:39

You hadn't yet articulated it,

57:41

but you've made your decision at that point

57:43

you're gonna release him,

57:45

or had you articulated it by then?

57:46

-

When I walked into the courtroom?

57:47

-

Yeah.

57:48

-

No.

Because I wanted to give the government

57:49

an opportunity to tell me something I didn't know.

57:51

I walked in the courtroom believing

57:55

and understanding that these were not enemy combatants.

57:57

Now, if there had been a development

58:01

that I was unaware of since the last hearing,

58:03

and they would say,

58:05

well, we have just learned that Mr. So-and-So,

58:06

part of this Uyghur,

58:09

then I would have listened to that.

58:11

So I didn't.

58:12

No, I had not made up my mind.

58:13

I had a certain predisposition

58:15

towards wanting to get more solid,

58:20

a more solid and curative response from the government,

58:23

but it'll be a month.

58:27

We have to identify some countries.

58:28

But none of that came to me,

58:30

so I felt that I had no alternative.

58:31

Interviewer

Were you worried about the reaction

58:34

for your decision?

58:36

-

No, I was not.

58:37

Interviewer

Because?

58:39

-

Well, I'm appointed for life.

58:42

I didn't feel I needed to be worried.

58:45

All I needed to do, is do the right thing,

58:47

and if people didn't like it,

58:50

and if the media didn't like it,

58:51

that's part of the job,

58:54

is to deal with other people's

58:56

difference of opinion and dissatisfaction.

59:00

Interviewer

And there's a term that you've used,

59:03

and other people have used,

59:05

about having a right without a remedy.

59:06

Can you explain that to the audience?

59:08

-

Yes.

59:11

In the law,

59:12

it searches for many things.

59:13

But when an issue is presented,

59:17

one of the things that a judge,

59:20

and I'm sure members of Congress,

59:23

and the executive branch as well, look at,

59:25

is there a right involved here?

59:28

Is there a claim that is supported by a right?

59:31

You know, the civil rights movement, as you know,

59:36

sprung from finding rights that were actually there,

59:39

but had been buried,

59:43

and bringing them to the surface.

59:45

So the law looks at it,

59:46

is there a right here?

59:48

And then if there is a right,

59:50

then, okay, what is the remedy?

59:53

How do we implement getting...

59:54

How do we implement measures to get this right satisfied?

59:58

And so I could not...

1:00:03

When I read Boumediene and the other cases,

1:00:06

it seemed clear, that the appellate court,

1:00:11

Supreme Court, understood clearly.

1:00:13

Justice Kennedy wrote

1:00:17

a brilliant introduction to the Boumediene

1:00:19

going way back into the history of

1:00:23

what a writ was in England, and how it evolved,

1:00:25

and what the core was,

1:00:29

and calling the jailers in,

1:00:30

so that the jailers could explain

1:00:32

why this person was in court, and so forth.

1:00:34

I mean, it was clear to me,

1:00:36

that the judiciary was taking a different view

1:00:38

about what needed to be done

1:00:42

in order to you get these detainees,

1:00:43

not necessarily Uyghur, but the detainees,

1:00:46

to the next stage.

1:00:47

So the right was established through all those cases.

1:00:50

It was first, Rasul identified the right to writ.

1:00:54

And then Hamdan said, yes,

1:01:00

not only that, but the Geneva Convention applies.

1:01:03

And then we had Boumediene,

1:01:06

(interposing voices)

which spoke clearly to all those issues.

1:01:10

And then Parhat, which was the circuit's decision,

1:01:13

which said, yes there is no question,

1:01:16

but that the judge will have the power to release.

1:01:20

And so all of that told me what the right was.

1:01:22

The right was clearly defined,

1:01:26

clearly defined by the judiciary, by the judges,

1:01:27

by the Supreme Court, by the circuit.

1:01:32

So the next step is, what is the remedy?

1:01:34

And the government was not telling me what the remedy was,

1:01:36

except continued detention of people who were innocent.

1:01:39

And I mean that in the true term,

1:01:44

were innocent of any wrongdoing,

1:01:46

other than being in the wrong place at the wrong time.

1:01:51

So I understood that there

1:01:55

might've been political considerations.

1:01:59

No matters of national security were ever

1:02:03

brought to my attention, for example.

1:02:06

I mean, if there had been some

1:02:08

issue of national securities buried within

1:02:09

the scenario that they needed to discuss with me,

1:02:14

you know, either with no one in the courtroom and sealed,

1:02:18

I would have gladly listened to that,

1:02:22

but there was nothing.

1:02:23

There was only indefinite detention

1:02:24

of people who were innocent,

1:02:26

and clearly, already determined

1:02:29

and labeled as non-combatants, non terrorists.

1:02:33

It had been seven years these people had been locked up.

1:02:39

Seven years!

1:02:42

A right without a remedy,

1:02:45

well, I just didn't feel that proceeding along those lines

1:02:46

was consistent with the directive

1:02:50

that the judicial branch of government has

1:02:54

in terms of interpreting and applying the law.

1:02:56

Interviewer

So what did you think would happen

1:03:00

after you issued the remedy of releasing them into the US?

1:03:01

-

I assumed at that point that...

1:03:06

Well, I assumed there would be some resistance.

1:03:09

I wasn't sure if the resistance would take

1:03:12

the shape of an actual appeal.

1:03:15

When they asked for a stay and I rejected it,

1:03:17

I just saw the stay.

1:03:19

To me, the stay seemed like another attempt to delay,

1:03:21

and these people had been locked up

1:03:25

for over seven years at this point,

1:03:27

and I had never seen one or met one,

1:03:29

but I gathered from what I read

1:03:32

that these people were anxious

1:03:34

to have justice done by a judicial system,

1:03:35

which has a reputation worldwide

1:03:38

for meeting out justice.

1:03:41

So, yeah, I decided that something had to happen.

1:03:43

Interviewer

So I'll ask you, I guess,

1:03:48

in a different way.

1:03:51

Were you optimistic that something would happen?

1:03:52

Did you think

1:03:54

President Obama would say-

1:03:55

-

Yes.

Perhaps I didn't understand the question clearly.

1:03:58

Yes, I knew there would be some resistance,

1:04:00

but I figured that, at that point,

1:04:03

the Obama administration would,

1:04:05

especially in light of the president's statement

1:04:08

that he was gonna close down Guantanamo.

1:04:10

But this particular subset of circumstances

1:04:12

of these people being detained so long and being innocent,

1:04:15

I figured that the attorney general

1:04:18

and the president would urge the matter to move in a fashion

1:04:21

so that they find a place, bring 'em here,

1:04:25

and if that's the pressure that needed to be exerted

1:04:27

then that would be the pressure

1:04:30

that needed to be exerted.

1:04:32

And if the Department of Homeland security

1:04:33

or otherwise said,

1:04:34

well, we can't keep them here.

1:04:35

We need to move them to Argentina

1:04:37

or someplace other place that had accepted them,

1:04:39

I mean, it still wouldn't be a happy solution, necessarily,

1:04:42

for the Uyghur's,

1:04:44

but it would be a solution

1:04:45

that involved they're released from detention.

1:04:48

Interviewer

So were you surprised when President Obama

1:04:51

and the administration didn't kind of

1:04:53

take your initiative and say,

1:04:56

let's use this to help close Guantanamo?

1:04:57

-

I was disappointed.

1:05:00

Interviewer

And instead, they appeal your case

1:05:04

to the Court of Appeals.

1:05:05

Can you tell us what happened there?

1:05:07

-

Well, first, it was a stay,

1:05:10

which meant that everything had frozen in place.

1:05:13

My order to have them brought

1:05:16

by the following week to the courtroom

1:05:18

was now in suspended animation.

1:05:20

And then there was a very expedited

1:05:22

process by the government and the lawyers who resisted

1:05:28

having the stay put in place.

1:05:33

But an expedited procedure

1:05:35

whereby the matter was now fully litigated

1:05:37

in an appellate fashion before the DC Circuit,

1:05:40

and the DC Circuit adopted the government's view,

1:05:44

which essentially was, and I understand,

1:05:48

I understand the dynamics of this.

1:05:51

I don't fault the circuit.

1:05:53

But the dynamics of this was the following:

1:05:55

the government said,

1:05:58

only the executive branch has the authority to have,

1:06:01

to invite people into the country only.

1:06:06

Now, the caseload didn't fully support that,

1:06:10

but I understand the position they took.

1:06:13

And that the judicial branch

1:06:15

does not have the authority

1:06:17

to have people brought into the country.

1:06:19

I understand that as well.

1:06:21

And again, I think the precedent...

1:06:24

They had precedent for that premise,

1:06:28

but there was also precedent contradictory to that

1:06:32

in a few cases that I was able to find.

1:06:37

But that was the position.

1:06:41

And the panel felt that,

1:06:43

yes, it should be,

1:06:45

that should be the function of the executive branch.

1:06:47

But again, when the executive branch

1:06:50

does not act in a responsible fashion,

1:06:52

and it has recognized the right, and so have the courts,

1:06:55

then I think I would have been derelict to say,

1:07:00

well, no, there's nothing I can do.

1:07:02

Interviewer

So you talked in your decision

1:07:05

opinion about liberty trumping separation of powers,

1:07:08

which kind of is what you're saying,

1:07:12

but can you just explain a little bit on that

1:07:14

what you were thinking?

1:07:17

-

Well, the law has a body,

1:07:18

which is all the black letter

1:07:22

that spells out with specificity

1:07:24

what the statute directs, and what the crime is,

1:07:28

or what the procedures are, or what the rights are,

1:07:32

or in the Constitution,

1:07:35

describing specifically what this country stands for,

1:07:36

and how it's going to employ

1:07:41

the rights that it has invested in people.

1:07:43

But the law also has a spirit.

1:07:46

It's a human...

1:07:48

It's a living organism.

1:07:50

It has a body, and it's got a spirit.

1:07:51

A body without a spirit is a dead thing.

1:07:54

And no, the court should be

1:07:58

very careful in a ruling in ways

1:08:02

that are not consistent with the body of law.

1:08:07

But the courts have the responsibility

1:08:12

to recognize the spirit of the law,

1:08:13

and liberty is one of the most

1:08:14

fundamental rights that a person can possibly have

1:08:16

under our Constitution.

1:08:21

That's it, liberty.

1:08:23

Not the right to keep your money,

1:08:25

or not the right to own land.

1:08:26

Liberty.

1:08:28

"Give me liberty or give me death",

1:08:29

I think somebody famous once said.

1:08:30

So I felt that under these circumstances,

1:08:33

with the promise of indefinite detention, that Liberty,

1:08:35

that basic right, needed to be,

1:08:39

needed to have a remedy.

1:08:43

Interviewer

And how did you feel

1:08:45

when the Court of Appeals overturned your decision?

1:08:46

-

Well, I felt that the Supreme Court...

1:08:51

Well, of course I was disappointed,

1:08:58

and I felt that the Supreme Court would address it again,

1:09:01

because my goodness, after Boumediene, and Parhat,

1:09:03

some of those other cases,

1:09:06

I felt that it would have a difficult time explaining why,

1:09:08

especially given the language of Parhat,

1:09:14

why under these circumstances,

1:09:17

with the promise of indefinite detention,

1:09:19

why the judge could not order it?

1:09:21

But the Supreme court ducked it.

1:09:23

It really spoke not at all.

1:09:26

Instead of sending it back to me,

1:09:28

he sent it back to the circuit,

1:09:29

and the thing fizzled out,

1:09:30

and the Uyghur's continued to be detained.

1:09:33

Interviewer

Well, part of the way I believe it happened,

1:09:36

is because the US government found a home

1:09:38

for one of the Uyghurs

1:09:41

-

Yes.

1:09:43

-

when no one else

would take him?

1:09:44

-

Yes.

1:09:45

I think it's Slovenia.

1:09:46

Some country.

1:09:47

-

Well, yes.

Switzerland took the disabled Uyghur,

1:09:49

and I think that was the problem?

1:09:52

-

Right.

1:09:54

Interviewer

And that, therefore,

1:09:55

the government could argue,

1:09:57

that now there were countries that would take

1:09:58

every one of the Uyghurs-

1:09:59

-

Well-

You know, some people believe,

1:10:02

some people who've analyzed the situation believe,

1:10:04

that the decision to bring them to this country

1:10:07

was an extra impetus to the government

1:10:10

to do what it had promised to do,

1:10:15

but had not been doing effectively before then.

1:10:17

And if that's true, fine.

1:10:19

But I understand.

1:10:21

I mean, I wasn't angry at the Court of Appeals.

1:10:23

I mean, I always say,

1:10:26

thank God for the Court of Appeals.

1:10:27

Especially in criminal cases where this liberty is at stake,

1:10:29

And if they see something that I didn't,

1:10:34

I never have a problem with the Court of Appeals say,

1:10:37

well, no, you should've done this,

1:10:39

and therefore, we're gonna do that.

1:10:40

Never.

1:10:43

You know, judges have to make...

1:10:45

Trial judges have to make decisions very quickly,

1:10:48

and so forth.

1:10:49

But no, I was not angry.

1:10:50

I understood the reasoning behind the decision.

1:10:54

I didn't agree with all of it,

1:10:58

but I felt that the Uyghurs had been,

1:11:00

I had given the case a fair shot, put it that way.

1:11:05

Interviewer

I mean, I think you are correct,

1:11:08

that it was an impetus,

1:11:09

'cause it forced the government

1:11:10

to look for a country to find, at last,

1:11:11

a home for that last Uyghur

1:11:14

that no other country would take

1:11:15

in order to get the Supreme Court not to take the case.

1:11:16

I think that's what happened.

1:11:19

No regrets in your decision?

1:11:20

-

No, no regrets whatsoever.

1:11:22

If it wasn't impetus, even less, regrets.

1:11:25

But no, no regrets.

1:11:28

The only thing that bothered me was,

1:11:29

that I think the initial decision

1:11:31

raised the hopes of these people.

1:11:34

They were, I'm sure, hoping to see their family,

1:11:36

see their friends, see their loved ones.

1:11:39

You know, maybe something could be arranged,

1:11:41

or they could resume some semblance of their life,

1:11:42

their culture, and so forth?

1:11:46

And then, of course,

1:11:48

that balloon was deflated almost immediately, I'm sure,

1:11:49

when they heard that the-

1:11:51

Interviewer

Court of Appeals.

1:11:54

-

Well, that there was a stay,

1:11:55

and then later,

1:11:56

that the Court of Appeals decided differently.

1:11:56

Interviewer

What reaction did you personally receive

1:11:59

after you wrote that decision, made it public?

1:12:01

What reaction did you

1:12:04

personally see, if any?

1:12:05

-

Oh.

Interviewer

Did you get letters,

1:12:07

or did people comment to you at all?

1:12:08

-

No.

1:12:13

-

I mean-

-

Really?

1:12:14

-

No.

None whatsoever.

1:12:14

You know-

1:12:16

-

You didn't get-

Interviewer

I'm sorry.

1:12:20

(interposing voices)

1:12:21

-

I don't remember getting any letters.

1:12:22

I mean, I think I would've remembered.

1:12:24

Of course, my law clerks frequently would

1:12:27

filter what I saw,

1:12:29

-

Oh.

-

and if they, if something came in

1:12:31

that they felt was outrageous,

1:12:32

you know, they may mention it,

1:12:34

but they wouldn't show it to me.

1:12:35

But no, I did not, interestingly enough.

1:12:37

And I never thought of this until just now.

1:12:39

I did not get any adverse public reaction.

1:12:41

The people that did mention something

1:12:46

mentioned it favorably.

1:12:49

Thought that I had made the right decision.

1:12:51

I didn't discuss it with any of the judges.

1:12:53

Interviewer

Did they ever come up to you

1:12:55

and say something like, good decision,

1:12:56

or we're glad you did it?

1:12:58

-

Well, that happened only once or twice.

1:12:59

My son lives in Washington, DC.

1:13:05

His wife and my grandson.

1:13:09

And he had a barbecue.

1:13:11

Well, the following...

1:13:16

Well, the decision was in October,

1:13:18

so it must have been in the spring of the following year.

1:13:19

And this lady came up to me at the event.

1:13:23

He's a writer for "The New York Times",

1:13:26

so he knows a lot of people with different walks of life.

1:13:28

And this lady came up to me, and she said, "Thank you".

1:13:31

And I said, "For what?"

1:13:34

And she said, "I'm a Uyghur,

1:13:36

and I followed the events, I followed the decision,

1:13:37

and I wanna thank you on behalf of the Uyghur community".

1:13:42

That's the only reaction I recall.

1:13:46

Interviewer

So otherwise, people didn't come up to you

1:13:50

in the street or nothing?

1:13:52

It was just...

1:13:53

It was all-

1:13:54

-

Now, people largely stay away from judges,

1:13:56

state or federal judges in particular.

1:13:58

Even my friends won't comment,

1:14:01

unless they're a very close friend,

1:14:03

but even my friends won't comment on cases

1:14:05

one way or the other.

1:14:08

Interviewer

And after that case,

1:14:09

did you get any more habeas cases,

1:14:10

or was that-

1:14:12

-

Yes, I did.

I had habeas cases.

1:14:16

I don't know if I got them after the case,

1:14:17

or I had them in my calendar.

1:14:19

(interposing voices)

But yes, I had several habeas decisions to make

1:14:21

until I retired in 2012.

1:14:26

Interviewer

And did you ever ask Chief Judge Hogan

1:14:28

why he assigned the Uyghur cases to you?

1:14:32

-

No, I did not.

1:14:34

Interviewer

Do have a guess why?

1:14:36

-

No, I never guessed why.

1:14:40

I kind of joked with him once.

1:14:43

I said, "Well, thank you very much

1:14:47

for giving me all these wonderful cases".

1:14:48

But no, and he laughed.

1:14:51

But no, we never discussed it.

1:14:52

Interviewer

So looking back, would you have...

1:14:55

What thoughts do you have about this period post-9/11,

1:14:58

and your role in it,

1:15:00

and these particular cases too,

1:15:03

but just a more general sense on

1:15:06

the role of justice and you as a judge?

1:15:10

-

Well, that whole 9/11...

1:15:13

Events after 9/11 brought up,

1:15:16

and surfaced something that we all know

1:15:19

and I think understand,

1:15:22

and that is that, when you have anger and fear,

1:15:24

they contaminate the rational process.

1:15:29

There was good reason to be angry,

1:15:34

and there was good reason to be fearful.

1:15:36

And as far as the general population is concerned,

1:15:38

they were outraged, and sad,

1:15:41

and justifiably wanting something to happen

1:15:44

in response to those horrific events.

1:15:52

But government has a responsibility not to get angry,

1:15:56

or not to get, not to act out of anger,

1:16:02

and certainly, not to act out of fear.

1:16:07

because it invariably is going to

1:16:10

distort the process that is in place

1:16:14

for avoiding anger and fear as a basis

1:16:20

for governmental action.

1:16:22

Of course, government is made of people,

1:16:25

and people get angry and fearful,

1:16:26

and the political branches.

1:16:29

In addition to that,

1:16:32

when people react,

1:16:33

and they communicate their anger

1:16:34

or fear to their representatives,

1:16:36

then to a certain extent,

1:16:37

their representatives are responsible to listen to that,

1:16:39

and hopefully try to temperate it.

1:16:45

I think that much of what we saw during that period,

1:16:51

starting with 9/11, and the invasion of Iraq,

1:16:58

and all of that, that there were...

1:17:03

Of course, everybody is a genius in hindsight.

1:17:06

But I think it was the motivation

1:17:08

to proceed in that fashion

1:17:12

was not supported by the most rational

1:17:15

and calm analysis of the situation.

1:17:22

And the judiciary had a tremendous burden

1:17:27

in trying not to get swept up in that,

1:17:32

because judiciary...

1:17:36

People don't know very much about judges.

1:17:39

I mean, they know something about the congressman,

1:17:40

(mumbles) a lot about the president, and so forth.

1:17:42

But the judicial branch,

1:17:45

you know, we're kind of in the background.

1:17:46

You know, they kind of watch "Judge Judy" on TV,

1:17:48

and they get a glimpse.

1:17:50

But I never learned anything about the judiciary

1:17:52

when I was in high school.

1:17:54

Well, very little.

1:17:56

Or grammar school.

1:17:57

So then when the judiciary acts in a certain way,

1:17:58

and the public says,

1:18:04

my goodness, what's wrong with that judge?

1:18:05

They don't have a full comprehension

1:18:08

of the guidelines, and the restrictions,

1:18:12

and the parameters, and the rules

1:18:14

that the judge has to operate within,

1:18:15

and the judges cannot afford

1:18:17

to get swept up with anger or fear,

1:18:20

even if it's fear of public reaction.

1:18:24

Interviewer

So you're saying,

1:18:27

the real war was put on the back burner too

1:18:28

during this time?

1:18:32

-

I believe that the thinking

1:18:35

that motivated creating the CSRT,

1:18:37

and the detainee tribunals,

1:18:40

and the military courts,

1:18:46

which were, as we learned, largely deficient

1:18:48

in providing basic right, to due process rights.

1:18:54

The fact that even one of,

1:18:59

or the district of,

1:19:02

US district court judges found

1:19:04

that there was no right to have,

1:19:06

no right to have the situation vented in a federal court.

1:19:09

Yeah, so there was a difference of opinion going around,

1:19:14

not just only in the general public and the legislature.

1:19:17

It was in the courts as well.

1:19:20

But the bottom line is,

1:19:22

that all of that not withstanding,

1:19:25

the judges still have to

1:19:29

contain themselves to the task at hand,

1:19:33

because the government works

1:19:35

if everybody performs its function.

1:19:37

If the legislative, the executive...

1:19:39

And the function of the judiciary

1:19:41

is not to make the other branches happy,

1:19:43

or not to make the public happy,

1:19:45

but to follow the law.

1:19:47

And that's what I thought I was doing.

1:19:49

But again, the decision was otherwise,

1:19:50

and so be it.

1:19:54

Interviewer

You think that the decision

1:19:56

was politically influenced?

1:19:58

Since you say-

1:20:02

-

The decision-

1:20:03

-

The Court of Appeals?

-

No, I don't think directly, no.

1:20:09

I think there was ideology involved,

1:20:12

but I don't consider ideology necessarily to be political,

1:20:15

and two judges may have different ideologies,

1:20:19

and as a consequence of that,

1:20:23

view a particular situation in a particular way.

1:20:25

But we're all predisposed in one way or the other.

1:20:28

No, I don't think that the judges were looking to

1:20:30

how the Republicans, or how the Democrats,

1:20:34

or how the legislature were gonna react to things.

1:20:36

I think they did what they thought was right.

1:20:39

Interviewer

Should Guantanamo be closed?

1:20:43

Have you thought about that at all?

1:20:46

-

Yes, Guantanamo should be closed.

1:20:46

Interviewer

Why?

1:20:48

-

As long as there is a process for...

1:20:51

I don't see that Guantanamo has done any good.

1:20:57

I don't see that it's provided anything positive.

1:21:00

I understand that it was at one time,

1:21:04

and perhaps, justifiably,

1:21:06

viewed as kind of a neutral place to put these people,

1:21:07

who were for the very first time

1:21:10

in the history of this country

1:21:12

in a special class of individuals,

1:21:14

and we had to put 'em somewhere.

1:21:16

But I don't think that

1:21:18

the purpose of Guantanamo has survived.

1:21:19

I think it's (coughs)...

1:21:22

Excuse me.

1:21:26

-

Bless you.

-

Is produced...

1:21:27

At this point,

1:21:29

it's producing more negative effects than positive.

1:21:30

Interviewer

Is there something I didn't ask you

1:21:30

that you thought about before you came,

1:21:35

or something you'd like to share with the audience?

1:21:37

I think you explained the court system really well,

1:21:42

and the role of the judge, and justice,

1:21:44

and I think your role in the case was explained very well.

1:21:47

But sometimes, people have other thoughts

1:21:50

that they just wanted to share about something?

1:21:52

-

Can we stop for a second?

1:21:55

-

Sure.

(Ricardo coughs)

1:21:56

Male

Okay, we're rolling.

1:21:59

Interviewer

Okay, one question...

1:22:00

One thing that I was thinking about as you were talking,

1:22:01

'cause you mentioned earlier about national security issues,

1:22:04

is there something that

1:22:07

was particularly impacting the way you

1:22:09

sometimes handled cases

1:22:12

when national security issues

1:22:13

came up that-

1:22:14

-

Yes.

-

You know, national security is a term

1:22:16

that is used with great power by those who assert it,

1:22:20

and by its very nature, it resists exploration.

1:22:25

So there may have been times,

1:22:33

not often, but at times,

1:22:35

when my insistence would result in disclosures made to me

1:22:37

that were labeled as having

1:22:45

a significance as national security.

1:22:48

Perhaps because of the circumstances it was said in,

1:22:50

and the fact that a disclosure of that type

1:22:53

would immediately identify that person as an informant,

1:22:55

and so forth, and so forth.

1:22:58

And again, most of us,

1:22:59

I think most of us judges,

1:23:03

were working with rules that had certain requirements

1:23:05

in a case where there was an adversarial situation,

1:23:10

especially where the outcome might result in detention

1:23:14

or imprisonment right?

1:23:17

So when this aspect of national security

1:23:20

was layered over certain information, and they said,

1:23:26

well, Judge, you've insisted, but here it is.

1:23:29

The stuff that was blacked out,

1:23:31

this is what it says,

1:23:33

but you can't share that with the other side.

1:23:34

And maybe they told the other side's lawyer,

1:23:37

and the lawyer couldn't share it with his client?

1:23:39

But this was a sphere of operation

1:23:42

that was totally new and foreign to us,

1:23:47

and we had to do the best we could

1:23:51

under the circumstances

1:23:53

to make sure that

1:23:56

nondisclosure did not materially affect the potential

1:23:59

for fairness in the proceeding,

1:24:02

and that was hard to do.

1:24:04

Interviewer

Did Judge Hogan ever have a discussion

1:24:06

with the judges about that issue?

1:24:09

-

Not in my recollection.

1:24:11

Judges are very...

1:24:15

As you know, judges are very protective

1:24:16

of their sense of independence,

1:24:19

and rarely, will one judge tell another judge

1:24:23

what judge number one thinks judge number two should do.

1:24:31

And if anything even approaches that,

1:24:35

there's usually some distancing from that.

1:24:37

But Judge Hogan was very deferential

1:24:40

and very sensitive to not wanting to say

1:24:43

or do anything that would suggest how.

1:24:47

You know, there are differing ideologies on that court,

1:24:50

how something should be resolved,

1:24:52

and what you should do

1:24:54

when the evidence that is not disclosed

1:24:55

might undermine the detainee's position.

1:24:59

That was something that each one of us

1:25:06

had to figure out on our own.

1:25:07

Interviewer

And so, because I'm naive,

1:25:10

and haven't sat on a court,

1:25:12

a judge wouldn't wanna go to at least a colleague, and say,

1:25:14

look, this national security issue is

1:25:17

affecting the way I'm making decisions.

1:25:21

You know, do you have any thoughts on that?

1:25:23

-

Oh, yes.

1:25:24

A judge could definitely do that.

1:25:25

And judges do do that.

1:25:26

You know, the general topic,

1:25:28

or a procedure, judges will talk about all the time.

1:25:33

How to handle a general topic,

1:25:37

judges will talk to each other about that,

1:25:39

because, first of all, they wanna learn,

1:25:40

and second of all,

1:25:43

do you want some degree of consistency, if that's possible?

1:25:43

So, yeah.

1:25:47

No, judges would talk,

1:25:48

but the judge probably would not get into specifics,

1:25:49

too many specifics,

1:25:52

about what national security meant in this situation,

1:25:53

because the judge who is entertaining these,

1:25:56

you can't even tell the other judge

1:25:59

what the national security issue is.

1:26:01

I could never disclose to anyone

1:26:04

what was contained within this item of national security.

1:26:06

Interviewer

And I assume you weren't the only judge

1:26:13

who was uncomfortable with having this burden,

1:26:15

where it could impact the detainee,

1:26:17

and yet, there's nothing you can do about it?

1:26:20

-

I never talked to other judges about it,

1:26:22

but the sense I got was that,

1:26:23

yes, this whole business of non-disclosure,

1:26:25

which was, as I said,

1:26:29

a total 180 degree from what we were used to

1:26:33

in criminal cases,

1:26:36

where the outcome could be detention,

1:26:37

was an impediment that we were all responsible to overcome.

1:26:40

And I got a sense that many of us were struggling with it.

1:26:48

Interviewer

Funny, 'cause one Australian lawyer

1:26:53

we spoke to said to us,

1:26:55

that in Australia, national security would never be

1:26:56

an excuse to hold off evidence.

1:26:59

That that's not the way they see the world, so.

1:27:02

I wonder how common it is?

1:27:05

So I guess that's how we started when we took a break.

1:27:09

But is there anything else that, I mean,

1:27:13

this time that maybe...

1:27:15

Do you wanna close-

1:27:17

-

Nothing I can think of, no.

Interviewer

Well, I'm really grateful,

1:27:19

and we need 20 seconds of room tone

1:27:21

where Johnny just has us quiet,

1:27:23

and then we can close also.

1:27:26

-

Okay.

-

Okay, thank you.

1:27:28

-

That's fine.

Sure.

1:27:29

Johnny

Begin room tone.

1:27:31

Ricardo

Do we talk?

1:27:34

Just quiet, right?

1:27:35

-

Yeah, we just listen.

1:27:36

-

Okay.

-

Okay, that was really-

1:27:52

-

Okay.

Urbina, Ricardo - Interview master file

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